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Is the UK going to withdraw from the ECHR? What about the Human Rights Act?

With the UK’s relations with Europe in such a state of flux, a few words may be in order on the UK government’s position toward (i) UK membership of the ECHR, and (ii) repeal of the Human Rights Act 1998. The last few years has seen so much speculation on these issues that even UK-based academics may struggle to keep up, or perhaps the better word is ‘decipher’, what the current position is. This is an attempt to do so.

The UK and the ECHR: no immediate plans for withdrawal

Current position: the UK government has ‘no plans to withdraw’ from the ECHR (1 Feb 2017, statement by David Jones, Minister for ‘Brexit’: here (col 1131)).

Concerns: the ‘no plans to withdraw’ position hardly amounts to a positive vote of confidence, and implies that withdrawal could yet form part of the said plans. This is consistent with what now appears like a semi-permanent or ‘standing’ implied threat of UK withdrawal, as if the UK government is holding this like a stick behind its back, to intimidate the Court.

As for the backdrop to all this, reference may be made to Theresa May’s previous comments about the ECHR, and recent press reports. When Home Secretary, Theresa May was not afraid to adopt a publically hostile position toward the ECHR; ill-informed incidents, such as ‘catgate’, do not seem to have put her off. In 2013 her position started to harden: she stated that ‘if leaving the European convention is what it takes to fix our human rights laws, that is what we should do’. Prior to the June 2016, ‘Brexit’ referendum, she argued that there was a greater case for withdrawal from the ECHR than from the EU (this was in April 2016).

After becoming Prime Minister, Theresa May was quick to state that withdrawal from the ECHR was off the agenda – not out of a sudden affection for it, of course, but as there was too much on the UK’s plate dealing with Brexit.

Yet, the implied threat of withdrawal has continued. Most notably, the UK Press recently reported (see here and here) that withdrawal from the ECHR could form part of the Conservative Party’s election Manifesto for May 2020 (the next scheduled election date, although it is not inconceivable that there could be an election before then – UPDATE: taking commentators by surprise, it has transpired that there will now be an election on 8 June 2017. At the time of writing (25 April 2017) the Conservative Party’s manifesto has yet to be published).

To be clear, these were only press reports. But the idea that a decision as important and complex as withdrawal could be considered taken and settled via the blunt instrument of a Conservative manifesto commitment and election victory is, I think, remarkable. The fact that the idea is even being floated says something about current Conservative party attitudes towards the ECHR.

Thus, the concern must be that, by 2020, the pressure will be such that the continued use of an implied threat of withdrawal will culminate in the political need for a manifesto commitment of the type referred to – and who knows that the outcome would be?

Presumably any such manifesto, and proposed withdrawal, would contain a type of a ‘Britain knows best’ on human rights plan. This brings us to how the domestic legal landscape on human rights protection might be reshaped, and the future of the Human Rights Act 1998.

The Human Rights Act to be replaced by a British Bill of Rights… at some point?

Current position: Plans for a British Bill of Rights have been put on hold until Brexit issues have been resolved; however, it seems inevitable that the matter will be returned to by current/ future Conservative administrations, when the opportunity arises.

Concerns: There may be nothing inherently wrong with replacing the Human Rights Act 1998 with a British Bill of Rights, provided the matter is approached in good faith and in a constructive way as regards the protection of human rights and the UK’s relationship with Strasbourg. There, however, lies the concern: all the ‘Background’ evidence suggests that the Conservative Party’s approach would be to use a British Bill of Rights to reduce human rights protection standards, and cause harm to the UK’s relations with Strasbourg, thereby increasing the likelihood of UK withdrawal from the ECHR.

There is a long backdrop to this concern (which I have set out elsewhere: see E Bates, ‘The UK and Strasbourg: A Strained Relationship – The Long View’ in K S Ziegler, E Wicks and L Hodson (eds), The UK and European Human Rights: A Strained Relationship?, (Hart, 2015) (draft version available at SSRN: http://ssrn.com/abstract=2568713). It was graphically evidenced by an October 2014 Conservative party document on human rights protection in the UK (and which was subject to wholesale criticism at the time). The constitutionally self-righteous narrative on display then essentially went as follows: the UK had played a leading role in drafting a good substantive Convention text, which Strasbourg had, over the years, interpreted incorrectly, abusing its power; as such, if things did not change, the UK would be justified in withdrawing from the ECHR.

For the authors of the 2014 document, this was the backdrop to proposed repeal of the Human Rights Act and its replacement by a British Bill of Rights. The aim was to use a new UK human rights landscape to reject those aspects of Strasbourg law that Conservatives regarded as unacceptable, at least for the purposes of domestic law.

In fact, the 2014 document was (as far as I am aware) never settled as Conservative Party policy. By comparison the UK Conservative party Manifesto of May 2015 (Manifesto May 2015), was considerably toned down. It stated (p 60):

‘The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK’.

The ‘Brexit’-like’ tone of the second sentence of this extract is notable, although, as noted above, it transpires that ‘Brexit’ itself has pushed reform of the domestic human rights landscape into the long grass (no Draft British Bill ever having been published).

Future outlook

Summing up, there are ‘no plans’ for the UK’s withdrawal from the Convention, whilst repeal of the Human Rights Act and replacement by a British Bill of Rights seems some way off, for now at least. Evidently, however, this does not reflect a thaw in the anti-Strasbourg mood within the centre of power in the UK. This looks set to continue whilst the Conservative party retains power, and one fears that the longer they do so does the chances that matters will culminate in a decision being made about the UK’s membership of the ECHR, post-‘Brexit’ (if not before).